By Dan Levine
SAN FRANCISCO (Reuters) - Three U.S. appeals court judges wrestled on Tuesday with whether accused Tucson shooter Jared Loughner can be medicated against his will, and the steps prison officials would have to follow to carry it out.
Lawyers for Loughner and the U.S. Department of Justice argued over the issue at a 90-minute hearing in San Francisco, though the 9th U.S. Circuit Court of Appeals judges did not make any rulings from the bench.
Loughner has been housed at a U.S. Bureau of Prisons psychiatric hospital in Missouri since May, when a lower court judge declared him mentally incompetent to stand trial on charges he killed six people and wounded 13 others, including Arizona Congresswoman Gabrielle Giffords.
In a related development, U.S. District Judge Larry Burns said he was considering a prison official's request for more time to try to restore Loughner's mental competency.
Loughner's attorneys have sought to keep their client from being given anti-psychotic drugs against his will, saying doing so was a violation of his due-process rights and an invasion of his personal liberty.
Prosecutors argue that doctors were prompted to forcibly medicate Loughner by a number of outbursts in which he threw chairs and spat at one of his own lawyers. They have asserted such behavior poses a danger to medical staff assigned to evaluate and treat him.
But the defense counters that the prison could employ less intrusive alternatives to anti-psychotic medications, such as tranquilizers and physical restraints.
Loughner, a college dropout who turns 23 next month, is accused of opening fire on Giffords and a crowd of bystanders outside a Tucson, Arizona, supermarket on January 8. Giffords is still recovering from a gunshot wound to the head.
Loughner pleaded not guilty in March to 49 charges stemming from the shooting, including multiple counts of first-degree murder.
INDEPENDENT DECISION MAKER
In July, the 9th Circuit ordered involuntary medication halted while the courts reviewed the matter. But the appeals court changed direction later in the month and allowed involuntary administration of drugs to resume while a legal challenge remains under consideration.
A lower court judge last week separately reaffirmed prison hospital officials' decision to medicate Loughner.
At the hearing on Tuesday, 9th Circuit Judge Jay Bybee said he had spent weeks studying the case.
"I don't really understand what you want," Bybee told Loughner attorney Reuben Cahn.
Cahn replied that he wanted a hearing on forced medication, where a lawyer for Loughner can question doctors in front of a judge.
"There needs to be an independent decision maker," Cahn said.
Assistant U.S. Attorney Christina Cabanillas, however, said medical decisions should be up to doctors, as courts move too slowly to handle prison situations. She said the rules for medicating a prisoner should be the same regardless of whether that person has been convicted at trial.
"A dangerous person is dangerous," she said.
In the competency matter, the judge involved in that issue said in court papers that the warden of the prison facility in Missouri was seeking an unspecified amount of time to treat Loughner and determine if there was a substantial probability he can be made fit to stand trial.
Judge Burns said in court filings that a doctor treating Loughner found him "not competent" at this time. Burns had requested the progress report on Loughner's condition when he declared him mentally unfit on May 25.
(Additional reporting by David Schwartz in Phoenix, Editing by Tim Gaynor and Cynthia Johnston)